1. This is a reference made to a Special Division Bench, under the second proviso to Rule 1, Chapter II of the High Court Appellate Side Rules. The particular question of law referred for determination is :
'Whether Rule 9 of the West Bengal Premises Rent Control Rules 1950 is ultra vires?'
2. Rule 9 above referred to is quoted below :
'9. In making inquiries under the Act, the Controller, the Chief Judge of the Court of Small Causes, Calcutta, the District Judge or the Judicial Officer to whom the case may be transferred under the provision of Clause (a) or Clause (b) of Sub-section (1) of Section 32 shall follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure, 3,908, for the regular trial of suits, the substance only of the evidence being recorded as in unappealable cases and shall record in brief 'the reasons for his findings.'
3. I need refer to the facts of the case briefly, so as to understand how this reference came to be made.
4. The petitioner Sethia Properties is the owner of premises No. 19 Doy Street, Calcutta. Suite No. 7, in the said premises, originally used to be occupied by one C. A. Sarkies, as a monthly tenant. At his instance the rent of the said suite had been standardised at Rs. 69-5-0 per month, with effect from the month of May 1950. After the said Sarkies hadleft the suite, the same was let to the present opposite party, from the month of February, 1952, at a monthly rent of Rs. 150/-. A sum of Rs. 150/- was also received by the petitioner, from the opposite party, by way of advance payment of one month's rent.
5. On April 23, 1952, the opposite party filed an application before the first Additional Kent Controller, inter alia, praying :
(a) that the landlord be ordered to receive rent at the rate as standardised,
(b) that the landlord be directed to refund the advance payment of one month's rent and also the amounts received month by month in excess of the standard rent, and
(c) that the landlord be dealt with under Section 33 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.
6. For reasons with which we are not concerned at this stage, the aforesaid application was heard ex parte. The Rent Controller came to the conclusion that the landlord had realised Rs. 243-1-0 knowingly in excess of the standard rent. He further came to the conclusion that the landlord had taken deliberate advantage of the helpless condition of the tenant and a very severe penalty was called for. By his order, dated June 27, 1952, the Rent Controller imposed a fine of Rs. 1200/- on the landlord, in exercise of his power under Section 33(1)(i) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.
7. The landlord preferred an appeal against the aforesaid order to the Chief Judge of the Court of Small Causes, Calcutta, being Appeal No. 870 of1952. The appeal succeeded and the case was remanded to the Rent Controller for re-hearing on merits,
8. At the rehearing, the landlord took up the opposition that the premises let to the opposite party was not the same premises as had been let to C. A. Sarkies, because considerable additions, alterations and improvements to the premises had been effected before the same was let out to the opposite party. It was, therefore, contended that the rent standardised in respect of the premises let to C. A. Sarkies would not apply to the altered and improved premises let to the opposite party.
9. The Rent Controller came to the conclusion that the premises let to the Opposite Party was the same premises as had been let to C. A. Sarkies and came to the further conclusion that the landlord had deliberately and knowingly realised rent in excess of the standard rent. The total realisation in excess of standard rent, the Rent Controller found, amounted to Rs. 243-1-0. The Rent Controller directed the landlord to refund the excess amount realised and further imposed a fine of Rs. 1200/- on him. The aforesaid order was made on December 12, 1953.
10. The present petitioner, landlord, appealed to the Chief Judge of the Calcutta Small Causes Court, against the aforesaid order. At the time of the hearing of the appeal, the petitioner, for the first time, urged that Section 33 of the West Bengal Premises Tenancy (Temporary Provisions) Act, 1950 created a new offence, which should have been made triable under the provisions of the Code of CriminalProcedure; Rule 9 of the West Bengal Premises Rent Control Rules, which made the Civil Procedure Code applicable to inquiries into such offence, it was contended, was repugnant to the provisions of the Constitution of India and the Criminal Procedure Code and was also beyond the rule-making power of the authority which framed the said rule.
11. The Court of appeal below overruled the aforesaid argument with the following observations:
'The main point is whether imposing of fine has been correctly made under correct procedure. It has been laid down in D. K. Sen Gupta v. Ananta Lal, : AIR1953Cal414 , that Rule 9 is not ultra vires and is not in conflict with Section 5 Cr. P. C. Therefore, the ruling in Gobardhan Das v. Dooliechand, 25 Cal WN 661 : (AIR 1921 Cal 708) (under Act of 1920) that Rule 4 was found ultra vires is not to be followed.
The only other point that calls for determination is whether it is a criminal offence. Pulin Krishna Paul v. Sishupati Chakravarty, : AIR1953Cal85 does not say it is a criminal offence, but it is 'criminal in nature'. To my mind I find that section 33 of the Rent Act, 1950, does not create a criminal offence and Criminal Procedure Code will not apply and as such the questions of mens rea and personal liability does not arise.'
12. The Court of appeal below also found against the landlord-appellant on merits and 'dismissed the appeal, by its order dated May 23, 1955.
13. Against the said appellate order, the landlord petitioner moved this Court and obtained the present Rule. The Rule at first came up for hearing before Bachawat, J. and by his order, dated April 11, 1956, His Lordship referred the matter, for hearing before a Division Bench, being of the opinion that the matter was of sufficient importance to merit such a reference.
14. The matter, thereafter, came up for hearing before P. N. Mookerjee and P. K. Sarkar, JJ. and their Lordships were pleased to recommend the present reference to a Special Bench.
15. Mr. Bimala Charan Deb, learned Advocate for the landlord-petitioner, invited my attention to the language of Section 33 of the West Bengal Premises Rent Control (Temporary Provision) Act, 1950 and argued as hereinbelow set forth. (1) He contended that the words 'penalty for recovering rent in excess of the standard rent', appearing in the marginal note, and the words 'complaint' and 'fine', used in the body of the Section, all went to indicate that the acts of receiving rent in excess of the standard rent, of receiving any premium, salami or fine in addition to the standard rent and of receiving any sum as rent in advance, in excess of one month's rent, without the written consent of the Controller, were 'offences' within the meaning of Section 4(0) of the Code of Criminal Procedure and Section 3(30) of the General Clauses Act (I of 1899). (2) He contended in the next place that such offences were in the nature of crimes or criminal offences and must be investigated, inquired into, tried and otherwise dealt with in accordance with the procedure as in the Cr. P. C. (3) Rule 9 of the West Bengal Premises Rent Control Rules 1950, in so far as it made the procedure laid down in the Code of Civil Procedure, for the regular trial of suits, applicable to such inquiries, Mr. Deb contended, was ultra vires the Constitution and the Code of Criminal Procedure and was also beyond the power vested in the rule making authority, under Section 47 of the Act of 1950.
16. He relied, in support of his contention, on a decision by Harries, C. J. and Sarkar, J., reported in : AIR1953Cal85 in which it was held that the ordinary meaning must be given to the words 'prosecution' and 'offence' in the absence of any definition of the said words in the Constitution; and it was further held that going to the Rent Controlles and asking him to fine a man for an act was really a prosecution of that man and the act was an offence against the statute and was a Criminal offence because it was punishable by fine, which was a punishment of a criminal nature.
17. He also relied on a decision by Sanderson, C. J. and Richardson, J. reported in 25 Cal WN 661: (AIR 1921 Cal 708), which held Rule 4, framed under the rule-making power of the Calcutta Rent Act, 1920, almost in pari materia with Rule 9 of the Act of 1950, ultra vires, because it made the C, P. C. applicable for trial for certain offences under the Rent Act of 1920.
18. The arguments advanced by Mr. Deb, raise several questions of very fundamental importance. It is not at all desirable that crimes and offences should be enquired into under the procedure as in the Code of Civil Procedure and not under the ordinary procedure as in the Code of Criminal Procedure.
19. Therefore, the first question for my consideration is whether Section 33 of the West Bengal Rent Control (Temporary Provisions) Act, 1950, (hereinafter referred to, for the sake of brevity, as the 'Act') or for the matter of that any other provision of the Act constitute the violation of the prohibitions, referred to in Section 33, into offences; and next question for consideration is whether such offences are crimes, or criminal offences, punishable as such.
20. In this connection it shall have to be borne in mind whether the words penalty, complaint and fine, as used in the Section, give internal indication that the matters referred to in the Section are criminal offences.
21. This necessitates an examination of the scheme of the Act.
22. Section 2(10) of the Act defines standard rent as meaning:
'(a) the standard rent determined in accordance with the provisions of Schedule A.
(b) where the rent has been fixed under Section 9, the rent so fixed; or at which it would have been fixed if application were made under the said Section.'
23. Under Section 3 of the Act, 'subject to the provision of this Act, any amount in excess of the standard rent of any premises shall be irrecoverable, notwithstanding any agreement to the contrary'.
24. Under Section 4 of the Act 'No person shall in consideration of the grant, renewal or continuance of a tenancy of any premises,
'(a) claim, receive, or invite offers or ask for the payment of, any premium, salami, fine or any other like imposition in addition to the rent, or
(b) except with the previous written consent of the Controller, claim or receive the payment of any sum exceeding one month's rent of such premises as rent in advance.'
25. Section 7 of the Act provides for refund of rent, premium or salami in the following manner :
(1) where any sum has been paid or deposited on or after the date of the commencement of this Act in respect of the occupation of any premises;
(a) On account of rent, being a sum which is by reason of the provisions of this Act irrecoverable, or
(b) as premium, salami, fine or other like imposition in addition to the rent or as rent in advance, the claiming or the receiving of which is prohibited under this Act, or
(c) on account of price or hire of any furniture an such premises without the permit of the Controller under Section 6,
the controller may, on application made to him in this behalf at any time within a period of six months from the date of such payment or deposit by the tenant by whom such payment or deposit was made, order the landlord by whom such payment was received or to whose credit such deposit was made, to refund such sum to such tenant or, at the option of such tenant, order the adjustment of any sum so paid or deposited in any other manner.
(2) An order of refund passed by the Controller under Sub-section (1) shall be executed by the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the premises in relation to which the sum ordered to be refunded was paid or deposited, as if such order of refund were a decree ot that court.'
26. Section 9 of the Act provides for different methods of fixation of standard rent and Section 10 provides for the date from when the standard rent fixed by the Controller must take effect.
27. Section 19 of the Act deals with deposit of rent by the tenant and by Sub-section (9) provides that on complaint being made to the Controller, by the landlord or by the person mentioned in Sub-section (4) of the Section, that the statements in the tenant's application of the reason and circumstances which led him to deposit the rent were untrue, the Controller may, after giving the tenant opportunity of being heard, levy a fine on him which may extend to five hundred rupees.
28. Chapter V of the Act deals with Hotels and Lodging Houses. Section 27, under that Chapter, provides for punishment for managers of hotels and owners of lodging houses under the following circumstances :
'(1) Every manager of a hotel or owner of a lodging house who accommodates lodgers or permits lodgers to be accommodated in a room or specified unit of accommodation in a hotel or lodging house in excess of the number fixed by the Controller under Section 22, except with the consent of all the lodgers of such room or specified unit of accommodation, shall on conviction in a Criminal Court be punished with fine which may extend to one thousand rupees.
(2) Every manager of a hotel or owner of a lodging house who fails to display a notice as required under Section 24 of the fair rate or the number of lodgers fixed under Section 22 shall on conviction in a Criminal Court be punished with fine which may extend to five hundred rupees'.
29. The marginal note of Section 33 is 'Penalty for recovering rent in excess of the standard rent'. The marginal note is not fully expressive of what is contained in the said Section, provides as it does also for penalty for receiving premium, salami, fine or any other like imposition in addition to the standard rent and for receiving advance in excess of one month's rent without the written consent of the Controller, Section 33 of the Act is set out below:
'Section 33. Penalty for recovering rent in excess of the standard rent.
(1) Whoever knowingly-
(a) receives, whether directly or indirectly, any sum on account of the rent of any premises in excess of the standard rent, or
(b) receives, whether directly or indirectly, or invites offers or asks for, any premium, salami, fine or any other like imposition in addition to the standard rent, or
(c) receives, whether directly or indirectly, any sum as rent in advance in excess of one month's rent without the written consent of the Controller, shall, on the complaint of the party aggrieved or of the State Government to the Controller, be liable,--
(i) in the case referred to in Clause (a) on the first occasion, to a fine which may extend to five times the amount recovered in excess of the standard rent, and on a second or subsequent occasion in regard to the same or any other premises, to fine which may extend to ten times the amount of such excess;
(ii) in the case referred to in Clause (b) on the first occasion, to a fine which may extend to two thousand rupees, and on a second or subsequent occasion in regard to the same or any other premises to a fine which may extend to five thousand rupees; and
(iii) in the case referred to in Clause (c), on the first occasion, to a fine which may extend to twice the amount received in excess of one month's rent, and on a second or subsequent occasion in regard to the same or any other premises, to a fine which may extend to four times the amount so received, to be imposed, in each case after inquiry, by the Controller.
(2) A person shall also be deemed to receive a sum in excess of the standard rent under Clause (a) of Sub-section (1), if he receives any form of consideration having money value as part of rent, and the total rent thus received is in excess of the standard rent.
30. Section 34 of the Act provides for penalty for disturbance of easement etc. and is to the following effect:
'Section 34. Penalty for disturbance of easements, etc. -- Whoever, in any case in which an order or decree for the recovery of possession of any premises is prohibited under Section 12, without the previous written consent of the Controller, or save for the purpose of effecting repairs or complying with any municipal requisition, wilfully disturbs any easement annexed to such premises, or removes, destroys, or renders unserviceable, anything provided for permanent use therewith, or discontinues any supply or service comprised in the tenancy of such premises, shall, on the complaint of the party aggrieved, be liable, on the first occasion, to a fine which may extend to five hundred rupees, and on a second or subsequent occasion in regard to the same or any other premises, to a fine which may extend to one thousand rupees, to be imposed, after inquiry, by the Controller.'
31. Section 35 of the Act provides for recovery of fine or any sum ordered to be paid under the Act in the manner following:
'Section 35. Payment and recovery of fine.--The fine imposed or any sum ordered to be paid under this Act shall be paid by the person fined or ordered to pay in the prescribed manner within thirty days from the date of the order of the Controller or within such further period as the Controller may allow for such payment for special reasons to be recorded by him in writing and in defaultof such payment the fine shall be recoverable as a public demand under the Bengal Public Demands Recovery Act 1913.'
32. Section 36 of the Act provides for six months' limitation from the date of the commission of the act, for complaints under Sections 33 or 34 of the Act.
33. Section 40 provides for punishment for knowingly accepting or attempting to accept any premium, salami or fine in addition to rent and is quoted below:
'Section 40. Criminal liability and refund of the consideration paid in addition to the standard rent. -- (1) Whoever knowingly accepts or obtains or attempts to accept or obtain, whether directly or indirectly, any sum or valuable tiling or any pecuniary advantage on account of any premium, salami or fine in addition to the rent lawfully payable under this Act, shall also, on conviction in aCriminal Court, be punished with imprisonment for a term which may extend to two years or with fineor with both and, without prejudice to any other method of recovery, the Court may order the amount paid or the value of the consideration given to be repaid to the person by whom the payment wasmade or the consideration given.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence punishable under Sub-section (1) shall be cognizable and bailable.'
34. Similarly Section 41 of the Act provides for punishment for cutting off or withholding essential supply or service and is set out below:
'Section 41. Cutting off or withholding essential supply or service.-- (1) No landlord either himself or through any person purporting to act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of premises let tohim.
(2) Any landlord who contravenes the provisions of Sub-section (1) shall, on conviction in a Criminal Court, be punished with imprisonment for a term which may extend to six months or with fine or with both.'
35. Section 47 of the Act invests the State Government with the power to make rules for carrying out the purposes of the Act and in particular authorises the State Government to provide by rules the procedure to be followed in inquiries under the Act and the manner of payment of the fine referredto in Section 35.
36. It will appear from the Section quoted above that the scheme of the Act, inter alia, is to provide for imposition, by the Controller, of fines for violation of certain prohibitions contained in the Act and to make violation of certain other prohibitions contained in the statute, triable by Criminal Courts and punishable either with fine or imprisonment or with both. Fines imposed by the Controller have been made recoverable as public demands under the Public Demands Recovery Act and not under the procedure as in Section 386 of the Code of Criminal Procedure. Fines imposed by Criminal Courts are, however, recoverable in the manner provided in the Criminal Procedure Code.
36a. Section 3(30) of the Bengal General Clauses Act and Section 4(o) of the Code of Criminal Procedure define 'offence' to mean 'any act or omission made punishable by any law for the time being in force.'
37. Both the types of violation of prohibitions as in the Act are, therefore, offences in the sense that they are either acts or omission made punishable by any law for the time being in force. We, therefore, uphold the first contention of Mr. Deb that violation of the prohibitions under Section 33 of the Act amounted to offence.
38. But while all crimes are offences all offences are not crimes. In Halsbury's Law of England (Simond's Edition), Vol X Part I Section 503 this aspect of the term offence has been dealt with, as hereinbelow quoted:
'If a statute prohibits or commands an act, disobedience to the statute is criminal and punishable by indictment, unless proceedings by indictment manifestly appear to be excluded by the statute. An act may, however, be prohibited or commanded by a statute in such a way that a person contravening the statute is liable to a pecuniary penalty recoverable as a debt by civil process, in such a case contravention is an offence against the statute, but is not a crime.'
39. And in Craies 'On Statute Law' (fifth Edition) at pages 497, 498, under the heading 'Penal Statute' the learned author observes:
'The term 'Penal statute', if employed without qualification is ambiguous * * * The cause of the ambiguity is that statutes fall from the point of view of penalty or sanction into three, and not into two, classes, viz.:
(1) Acts enforceable by criminal remedies;
(2) Acts enforceable by civil remedies by way of damages;
(3) Acts enforceable by civil remedies in the form of penalty, forfeiture or disability. Into the third class fall those now comparatively rare Acts in which the sanction for disobedience consists in the right to sue for a specific penalty by civil procedure, i.e., by what is a penal action properly so called. The object of such statutes is punishment, and the sum recoverable thereunder, whether called penalty or damages, is not assessed with a view of compensating the plaintiff. Thesefall into two sub-divisions; ;
(a) Actions by the Attorney-General or a Public Official;
(b) Actions by persons aggrieved'.
40. In Stroud's Judicial Dictionary the word 'penalty' has been characterised as an ambiguous word. It is used in the Contract Act in the sense of compensation for breach of contract (as in section 74 of the Indian Contract Act). It is also used in certain taxation statutes, e.g. the Indian income-tax Act or the Bengal Finance (Sales Tax) Act, in the sense of a penal pecuniary imposition meant for protection of revenue and directed against violation of statutory duties, the imposition being recoverable as debt by civil process, as, for example, in Section 28 of the Indian Income Tax Act, providing for penalty for concealment of income or improper distribution of profit or in Section 11 of the Bengal Finance (Sales Tax) Act providing for penalty for default in filing returns. Its use as meaning punishment for crimes is also well-known. Therefore, when an offence entails a penalty, the offence does not become a criminal offence only because of that reason.
41. As far back as 1775, Lord Mansfield observed, in the case of Atcheson v. Everitt, (1775) 1 Cowp 882 (at pages 391, 392):
'Penal actions were never yet put under the head of criminal law, or crimes. The consideration of the statute must be extended by equity to make this a criminal cause. It is as much a civil action as an action for money had and received * * * No authority whatever has been mentioned on the other side, nor any case cited where it has been held that a penal action is a criminal case; and perhaps the point was never before doubted.'
42. And in the well-known case of Attorney General v. Bradlaugh, ( (1885) 14 Q. B. D. 667 at p. 687), started on an information by the Attorney General to recover penalties against the defendant for sitting and voting in the House of Commons without taking the oath, Brett, M. R., said:
'The recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well-known and established in law for many years between a penal statute and a criminal enactment, would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment.'
43. The same point cropped up for consideration before the Judicial Committee of the Privy Council in the case Huntington v. Attril, 1893 AC 150. In June 1880, the appellant Huntington became a creditor for money lent to Rockway Beach Improvement Co. Ltd., which carried on business in the State of New York, being incorporated pursuant to Chapter Oil of the State Law of 1875. Section 21 of the Act provided that,
'If any certificate or report made or public notice given by the officers of any such Corporation shall be false in material representation, all the officers who shall have signed the same shall be jointly and severally liable for all the debts of the Corporation contracted while they are officers thereof'.
The respondent was, in June, 1880, a director and in that capacity an officer of the Company within the meaning of the statute. On the 30th of the month he, along with other officers of the Company signed and verified on oath a certificate setting forth, that the whole capital stock had, at that date been paid up in cash. Alleging that the certificate contained representations which were material and false and that the respondent had incurred personal responsibility as provided by Section 21, the appellant instituted a suit against the respondent, before the Supreme Court of New York State, for unpaid balance of his loan to the Company. The suit succeeded and the respondent was ordered to pay to the appellant the sum of $ 100,240/-. Having failed to recover payment, the appellant brought an action upon his decree in the Common Pleas Division of the High Court of Justice for the Province of Ontorio, where the respondent resided. By way of demurrer, the respondent pleaded that the judgment sued on was for a penalty indicted by the municipal law of New York and the action being o one of penal character ought not to be entertained by the Court of a foreign State. The trial Court being of the opinion that the provision of Section 21 was strictly punitive and not remedial Dismissed the action with costs. The Judges of the Appeal Court were equally divided in opinion and dismissed the appeal. Chief Justice Hagarty and Mr, Justice Osier were of opinion that the Statutory remedy given to the appellant as a creditor of the Company being civil only, and not enforceable by the State or by the public, was not a penal matter in the sense of international law. Mr. Justice Maclennan was of the view that the enactment was in itself undoubtedly penal, inasmuch as it was passed in the public interest and provided for a punishment for an offence and that it made no difference that what it exacted from the offender was given to persons, who were ordinary creditors of a company, in payment of their respective debts. On appeal being taken, against the order of dismissal, to the Privy Council, their Lordships could not agree with the proposition that the action was penal in character. Lord Watson, delivering the Judgment of the Board observed (at pages 156-59).
'In its ordinary acceptation, the word 'penal' may embrace penalties for infractions of general law which do not constitute offences against the State; it may for many legal purposes be applied with perfect propriety to penalties created by contract; and it, therefore, when taken by itself, fails to mark that distinction between Civil rights and criminal wrongs which is the very essence of the international rule * * * the expression 'penal' and 'penalty' are calculated to mislead, because they are capable of being construed so as to extend the rule to all proceedings for the recovery of penalties, whether exigible by the State in the interest of the community or by private persons in their own interest. * * * All the provisions of Municipal Statutes for the regulation of trade and trading companies are presumably enacted in the interest and for the benefit of the community at large; and persons who violate these provisions are, in a certain sense, offenders against the State law, as well as against individuals who may be injured by their misconduct. But foreign tribunals do not regard these violations ofStatute law as offences against the State, unless theirvindication rests with the State itself, or with thecommunity which it represents. Penalties may beattached to them, but that circumstance will notbring them within the rule, except in cases wherethese penalties are recoverable at the instance ofthe State, or of an official duly authorised to prosecute cm its behalf, or of a member of the public inthe character of a common informer. An actionby the latter is regarded as an actio popularis pursued, not in his individual interest, but in the interestof the whole community * * *
* * * * The provisions of Section 21 are in striking contrast to the enactments of Section 34, which inflict a penalty of $100 upon every director or officer of a Corporation with limited liability, who authorises or permits the omission of the words 'limited' from its seal, official publications, or business documents. In that case, the penalty is recoverable 'in the name of the people of the State of New York by the District attorney of the country in which the principal office of such Corporation is located, and the amounts recovered shall be paid over to the proper authorities for the support of the poor of such county'. It does not admit of doubt that an action by the District attorney would be a suit in favour of the State and that neither the penalty, nor the decree of a New York Court, for its amount, could be enforced in a foreign country.
In one aspect of them, the provisions of Section 21, are penal in the wider sense in which the term is used. They impose heavy liabilities upon Directors, in respect of failure to observe statutory regulations for the protection of persons, who have become or may become creditors of the Corporation. But, in so far as they concern creditors, these provisions are in their nature protective and remedial. To use the language of Mr. Justice Osier, they give 'a civil remedy only to creditors whose rights the conduct of the Company's officers may have been calculated to injure, and which is not enforceable by the State or the public'. In the opinion of their Lordships, these enactments are simply conditions upon which the Legislature permits associations to trade with Corporate privileges and constitute an implied term of every contract between the Corporation and its creditors.'
44. The aforesaid decision is no doubt on a point of international law but nevertheless it draws a line of distinction between actions which are purely penal actions and actions which are criminal actions for enforcement of a penalty attached to a crime.
45. We need now refer to one of the latest decisions on the point reported in Brown v. Allwea-ther Mechanical Grouting Co. Ltd., 0953) 1 All ER 474. At a Court of summary Jurisdiction, sitting in Woodstock, the appellant Brown, an Inspector of the Oxfordshire Constabulary preferred an information against the respondents charging that they did unlawfully aid, abet, counsel and procure one Joseph Cassidy in the Commission of a summary offence, that is to say, in contravention of the Vehicles Excise) Act, 1949, Section 13(2), while there was then in force a certain licence taken out for a mechanically propelled goods vehicle at a certain rate, hedid unlawfully use such vehicle on a road for a purpose which brought it within a class or description of vehicle to which a higher rate of duty was chargeable, such higher late not having been paid before the vehicle was so used, contrary to the Summary jurisdiction Act. It was contended on behalf or the respondents that the Vehicles (Excise) Act, 1949, did not create an offence which was punishable on summary conviction and that the respondents could not, therefore, be convicted of aiding and abetting such offence. If there had been a breach of the regulations whereby the local licensing authority had been deprived of a certain amount of revenue, the appropriate remedy was by way of an excise penalty against the party liable. The Justices dismissed the information and the appellant preferred an appeal to the Queen's Bench Division of the High Court. Lord Goddard, C. J., in delivering the judgment, observed (at pages 475, 476):
'Counsel for the respondents has taken a point of great importance, and the Court is indebted to him for doing so as this point appears not to have occurred to anybody before because there have been plenty of proceedings under the Section in question in circumstances I will mention in a moment. His point was that the Vehicles (Excise) Act, 1949, Section 13(2), did not create an offence punishable on summary conviction, and if follows that, if that is So Section 5 of the Summary Jurisdiction Act, 1848, which provides for the punishment of aides and abettors of summary offences, has no application. Concisely stated, the argument of counsel for the respondents was that the sanction provided by the Act for using a vehicle which has one class of licence attached to it for a purpose which would require a different class of licence is a monetary penalty which can be recovered in various forms of proceedings, but the Act docs not create on offence in the sense that it is punishable as a criminal offence, although a penalty may be recovered in what would generally be called penal proceedings. It is true that, if the word 'penalty', as distinct from the word 'fine' is used in a section, the general rule is that the penalty must be sought and recovered as a debt in a Civil Court, whereas a fine is a penalty imposed by a Criminal Court, and a fine always goes to the Crown.'
In the present case there was alleged to have been an offence against Section 13(2) of the Vehicles (Excise) Act, 1949. It is observable that this is an Excise Act, and therefore, the Excise Management Act, 1827, applies to proceedings under it. Under the Act of 1949 a person using a motor vehicle for a purpose for which it is not licensed and which would attract a higher rate of license, is made liable to an excise penalty of 20 or an excise penalty of an amount equal to three times the difference between the duty actually paid on the licence and the amount of duty at the higher rate. There are no words in Section 13 (2) which refer to summary conviction or summary trial, or to fines, or anything to indicate that a criminal offence is created. In section 15 of the Act, which refers to using vehicles without a license at alt, a similar penalty is imposed that is, an excise penalty of 20 or an excise penalty 'equal to three times the amount of the duty chargeable.' Section 15(2) provides :
'Proceedings for a penalty under the last foregoing Sub-section may be brought at any time within a period of twelve months from the date on which the offence was committed.' There the word 'offence' is used. A further provision in Sub-section 3(a) obliges the owner of the vehicle to give such information as he may be required ** * In Sub-section (4) it is provided;
'A person guilty of an offence under the last foregoing Sub-section shall be liable on summary conviction to a fine not exceeding 20'. Therefore, if a person fails to give the information when he is asked for it, that is made by the statute an offence and the word 'fine' is used, not 'penalty'. We arc not considering Section 15 in the present case, but counsel for the appellant rightly drew our attention to Section 15(1) because the subject matter is very much the same as that of Section 13(2). The penalty, also, is similar. It is true that it is provided in Section 15(2) that 'proceedings ..... may be brought at any time within a period of twelve months from the date on which the offence was committed'. In other words, the Act is imposing an express term of limitation of twelve months. Years ago, under the old statutes, a debt created by a statute was regarded as a specialty debt, and for the present purpose a special period of limitation is provided. I do not think the mere fact that the word 'offence' is used there shows that it is to be regarded as a criminal offence. A failure to do something prescribed by statute may be described as an offence although Parliament imposes in respect of it, not a criminal sanction, but a mere pecuniary sanction, which is recoverable as a civil debt. Justices, as is well known, have in many cases power to order the recovery of sums of money. If one turns to Section 65 of the Excise Management Act, 1827, one finds that Excise penalties may be recovered before Justices of the peace, but there is no indication in the section that the Justices are able to imprison or to impose a fine. It simply gives them power to enquire into the matter and give judgment for penalties. Of course, if the penalties are not paid, there may be proceedings under the Debtors Act or other Acts -- possibly under the Summary Jurisdiction Acts -- and there may be a committal to prison, but that is not a punishment for the offence itself. It is a punishment for not paying the penalty, or a means of endeavouring to compel a defendant to pay a penalty, which is a different matter.
Passages in the judgment of the Master of theRolls in A.--G. v. Bradlaugh, to which counsel forthe respondents has directed our attention, supporthis argument. Sir William Brett, M. R., pointedout ((1885) 14 QBD 667 at p. 687) that where apenalty is imposed for doing a particular act, thepenalty is the only sanction, and the imposition ofthe penalty, if it is the only consequence, does notmake the prohibited act a crime.' * * *
* * * * in my opinion, an excise penalty is something quite different from a fine. It is recoverable before justices, and it ought to be recovered by way of complaint.'
46. In the aforesaid decision the distinction between a penal action and a criminal action was recognised, and it was further held that the use ofthe word 'offence' did not necessarily make the act, which was an offence, a criminal offence. But Their Lordships emphasised on the word 'penalty' used in Section 13(2) and the word 'fine' used in Section 15(2) of the Vehicle (Excise) Act, 1949, as indicating, which of the two offences was a criminal offence.
47. Crimes and punishments are necessary attendants on each other. Fine is, no doubt, one of the modes of punishment for a criminal offence. That is what appears from Section 53 of the Indian Penal Code itself. Stroud's Judicial Dictionary, quoting from Coke on Littleton, describes 'fine' as signifying a 'pecuniarie punishment for an offence, or a contempt committed against the king, and regularly to 'it imprisonment appertaineth. And it is called finis, because it is an end for that offence'. But 'fine' as a punishment for a criminal offence is not the only use of the word. There are certain other uses also of the word 'fine'.
48. Section 167(8) read with Section 182 of the Sea Customs Act provides for confiscation of goods for certain offences under the said Act. The confiscation is often attended with imposition of a monetary penalty or increased duty. Orders of confiscation and imposition of penalty are made not by criminal courts but by Custom Officers -- the offences being Customs offences and not criminal offences. Section 183 of the Sea Customs Act is to the following effect:
'Whenever confiscation is authorised by the Act, the officer adjudging it shall give the owner of the goods an opportunity to pay in lieu of confiscation such fine as the officer thinks fit.'
49. Section 186 of the Sea Customs Act, inter alia, provides that the award of any confiscation, penalty or increased rate of duty under the Act by an Officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law.
50. In the case of Sewpujan Rai Indrasan Rai Ltd. v. The Collector of Customs, : 1958CriLJ1355 the appellant was punished with confiscation of his gold and was given the option to pay a fine of Rs. 10,00,000/- in lieu of confiscation. The Customs law contravention with which the appellant had been charged was also an offence under Foreign Exchange Regulation Act and punishable, under Section 23 of the said Act, either with imprisonment or fine or both. It was contended in the abovementioned case that when an offence fell within the mischief of Section 23 of the Foreign Exchange Regulation Act, proceedings must have to be taken under that Act and not under the provisions of Sections 167(8) / 182 / 183 of the Sea Customs Act. The Supreme Court negatived the contention. In course of the judgment it was observed (at page 932 (of SCA) : (at p. 853 of AIR)), as follows :
'By the impugned order the Collector of Customs confiscated the gold, and in lieu thereof gave the appellant an option to pay a fine of Rs. 10,00,000/- (rupees ten laks). It is not disputed that the impugned order upto the extent stated above was within his jurisdiction to make.'
51. It will thus appear that though the word 'fine' has an orthodox meaning, namely, punishment imposed by a Court of Criminal jurisdiction for a crime, it is also used in an unorthodox sense, namely, a penalty, as in the imposition of fine in lieu of confiscation, under Section 183 of the Sea Customs Act. Therefore, the use of the word 'fine' as a method of penalty to be imposed for a statutory offence is not always a sure indication that the statutory offence must be a crime. If it were so, a Customs Officer not invested with criminal jurisdiction, could not impose a fine as a punishment for a criminal offence. Again, the payment of such a fine would not have been made optional to the owner of the goods and payable in lieu of confiscation.
52. Similarly, under Section 58(3) of the Bengal Tenancy Act, a Collector may make a landlord liable to pay a fine, not exceeding rupees fifty, if the landlord fails to deliver to the tenant a receipt or statement or to prepare and retain a counterfoil or copy of a receipt or statement. The procedure for imposition of fine is by way of summary inquiry, different from the procedure as in the Criminal Procedure Code. Also such enquiry is not to be made by a Magistrate. The fine, if any imposed, is recoverable, under Section 58(7) of that Act, as a public demand and not under Section 386 of the Cr. P. C. An appeal against such fine lies to the Commissioner and not to a Court of Criminal appellate jurisdiction. All these may go to indicate that the statutory offence is not and has not been treated as a criminal offence, although there is a penalty by way of fine attached to it.
53. Richardson, J., in his separate judgment in 25 Cal WN 661 (672-73): (AIR 1921 Cal 708 at p. 716), however, expressed a different view as hereinbelow quoted:
'As the Advocate-General pointed out, a power to line was given to Collectors by the Bengal Survey Act, 1875 (Sections 51-55 and 58) and the Bengal Tenancy Act, 1885 (Section 58, Clauses (3) to (8)). But it does not follow that proceedings before Collectors under these provisions are purely civil or revenue proceedings and not criminal proceedings, or that the acts to which a fine is attached are not 'offences' within the meaning of the Criminal Procedure Code. Section 53 of the Survey Act begins with the words which savour of the criminal law:
'Any person convicted before Collector ........' So, in England, the authorities show that what counts is the proceeding and not the Court (see Craig's Statute Law, 2nd Edn., pp. 454 et seq). There are the cases turning on Section 47 of the Judicature Act, 1873, which provides that no appeal shall lie to the Court of Appeal from a judgment of the High Court 'in any criminal cause Or matter'. In Toronto Railway Co. v. Toronto City (1920) AC 446 at p. 452, their Lordships of the Privy Council referred to the 'series of cases commencing with Heame v. Carton, (1859) 2 E & E 66 and ending with Ex parte, Schofield, (1891) 2 QB 428, in which it had been held 'that the imposition of a fine or penalty (not being by way of reimbursement) for the breach of an order of a public authority is matter of criminal and not civil procedure.' In Derby Corporation v. Derbyshire County Council, (1897) AC 550, where the question was whether in certain proceedings before a County Court, discovery should be allowedagainst the defendant, Lord Herschell said; 'When a proceeding is one to enforce a penalty, or where a proceeding is one -- not that must end in a penalty, because the decision may be in favour of the person against whom it is taken, but where the proceeding is of such a nature that it may result in a penalty --it is a penal proceeding'. In Vernon v. Watson, (1891) 2 QB 288, Lord Halsbury was of opinion that the proceeding there in question was partly of a criminal character.'
54. I have already given my reasons why an offence under Section 58(3) of the Bengal Tenancy Act may not be a crime. The English authorities relied on by Richardson, J., do not speak in the same voice. Some use the expression penal proceedings, others the expression proceeding partly of a criminal character. I am, therefore, of the) opinion, that, without more, the use of the word 'fine' as penalty for an offence will not necessarily go to establish that the offence must be a crimina) offence.
55. It remains for me now to examine the meaning and import of the word 'complaint' as used in Section 33 of the Act. Complaint is defined ID SECTION 4(1) (h) of the Code of Criminal Procedure as follows:-
'Complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence but it does not include the report of a Police Officer'.
56. A complaint for taking action under the Criminal Procedure Code must be made before a Magistrate. But a complaint to be made not to a Magistrate but to some other officer, as in this case to the Rent Controller, not invested with Magisterial powers, is not the type of complaint contemplate ed in the Code of Criminal Procedure. Therefore, the use of the word 'complaint', in Section 33 of the Act, does not afford a sure indication that offences therein mentioned must be criminal offences.
57. We have now to consider the two cases relied on by Mr. Deb, namely 25 Cal WN 661 : (AIR 1921 Cal 708) and : AIR1953Cal85 .
58. The case reported in 25 Cal WN 661 : (AIR 1921 Cal 708), is a case under the Calcutta Rent Act of 1920. Alike the provisions contained in the West Bengal Rent Control (Temporary Provisions) Act, 1950, the Act of 1920 defined standard rent, gave power to the Local Government to appoint a Controller, made all sums excess of standard rent irrecoverable and provides for limitations on the power of the landlord to eject. By Section 18 provision was made for the revision of Controller's decision, fixing the standard rent, by the President of the Calcutta Improvement Tribunal, in respect of premises in Calcutta, and by the principle Civil Court of Original Jurisdiction in the Districts, in respect of premises Outside Calcutta. By Section 19 provision was made for the imposition of a penalty for recovering rent in excess of the standard rent and by Section 20 provision was made for the imposition of penalty, under the said Act, to be started with a complaint by the party aggrieved; the procedure for inquiry was summary inquiry by the President of the Tribunal or the principal Civil Court, whichever Tribunal or Court had jurisdiction and the penaltyprovided was on the first occasion a fine, which might extend to five hundred rupees, and on a second or subsequent occasion in regard to the same or any other premises, to a fine which might extend to one thousand rupees. Section 23 authorised the Local Government to make rules, inter alia, 'regulating the procedure to be followed in inquiries by the Controller, the President of the Tribunal and the principal Civil Court of Original Jurisdiction in the Districts'. Under the rule making power the Local Government framed Rule 4, which provided as follows:-
'In making enquiries under the Act, the Controller or the President of the Tribunal should follow as nearly as may the procedure laid down in theCode of Civil Procedure, 190S, for the regular trialof suits, the substance only of the evidence beingrecorded as in unappealable cases'.
59. In the case above, the landlord was found to have willfully discontinued the supply of unfiltered water to the urinals and privies in the premises in dispute. He was tried by the President of the Calcutta Improvement Tribunal, under Section 20 ofthe Act, in accordance with the procedure laid down in Rule 4 quoted above, was found guilty and was ordered to pay a fine of Rs. 250/-. The landlord moved against his conviction and sentence to thisCourt and raised a two-fold contention, (i) that Section 20 of the Calcutta Rent Act investing the President of the Tribunal with power to try a Criminal Case and thereby creating a new Criminal Court was ultravires the Legislature of the Governor-in-Council of Bengal (it) that Rule 4, framed under Section 23 ofthe Rent Act for regulating the procedure in inquiries by the President of the Tribunal, in so far as it did provide that the procedure laid down in the Code of Civil Procedure, 1908, would apply was ultra vires, being repugnant to the fundamental principle and the procedure, to be adopted in trials of offences, as prescribed by the Criminal Procedure Code. The first contention made by the landlord failed. But Sanderson C. J. (Richardson J. concurring in a separate judgment) held Rule 4 ultra vires, on the following line of reasoning:-
'By Section 4(o) of the Code of Criminal Procedure 'offence' means' any act or omission made punishable by 'any law for the time being in force.' These are very wide words and in my judgment are sufficient to cover the acts referred to in Section 20 of the Rent Act. The fact that the words 'offence' and 'punishable' are not to be found in Section 20, in my judgment, does not affect the question.
The real nature of the matter must be looked at; and when so looked at the section, in my judgment, does create a new criminal offence. The person against whom the complaint is proved, is rendered liable for a fine of Rs. 500/- on the first occasion, and on a subsequent occasion to a fine of Rs. 1000/-; it is impossible, in my judgment, for us to say that such a fine is not 'punishment' in the ordinary meaning of the word. The acts referred to in the section are made punishable by a law for the time being in force, viz., the Rent Act, and consequently they arc within the above-mentioned definition nor does the fact that the enquiry is to be made by the 'President of the Tribunal' in the one case, and by the principal Civil Court in the othercase, prevent the proceedings being of a criminalnature. The 'President of the Tribunal' would be an appropriate Tribunal to deal with the question of standard rent, and the matters which would have to be considered in connection therewith; and having appointed him as the Tribunal, in respect of such matters it would not be unreasonable for the Legislature to invest him with the powers contained in Section 20 of the Rent Act which, as I have already pointed out, were necessary for making the Act completely effective.
The question then arises, was it competent to the local Legislature to provide by a Rule that the President of the Tribunal when enquiring into a criminal offence punishable with a fine under Section 20 of the Rent Act, should follow as nearly as may be, the procedure laid down in the Code of Civil Procedure for the regular trial of Civil Suits. Without this Rule the procedure to be followed in such a case would be the procedure contained in the provisions of the Code of Criminal Procedure, which would be a procedure natural to the matter in question.
Section 5 of that Code provides as follows:-
'(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained'.
'(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the lime being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence'.
Prima facie, therefore, the provisions of the Code of Criminal Procedure would apply unless it can be said that there is an enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with the offence.
It was argued that Rule 4 is such an 'enactment' within the meaning of Sub-section (2) of Section 5 of the Code of Criminal Procedure.
The Rule, in my judgment, is not an 'enactment' in the ordinary meaning of the word in its legislative sense: For the purpose of ascertaining the meaning of 'enactment' reference was made to the definition of the word in Section 3(17) of the General Clauses Act, 1897, which provides that 'enactment' shall include a regulation (as thereinafter defined) and any regulation of the Bengal, Madras or Bombay Code, and should also include any provision contained in any Act or in any such regulation as aforesaid. As to the power of Local Legislature to make Regulations, Section 71 of the Government of India Act, 1915, is material: That Section provides that a regulation proposed by the Local Government must be submitted to the Governor-General in Council for approval. The above-mentioned definition, though not conclusive, throws light upon the meaning of 'enactment' and goes to show that the word would not ordinarily mean a 'Statutory Rule'. Consequently in my judgment Rule 4 is not an 'enactment' within the meaning of Section 5(2) of the Code of Criminal Procedure. The Rule is not part of the Act and it is not directly enacted by the Legislature with the previous sanction of the Governor-General and yet the effect of the Rule, if valid, is to repeal or alter the Code of Criminal Procedure, and to providethat the new offence created by Section 20 of the Rent Act shall be dealt with in accordance with the provisions of the Civil Procedure Code instead of in accordance with the provisions of the Criminal Procedure Code.
It was urged that the Rent Act itself contemplated the procedure of the Civil Procedure Code being used for the purpose of the Rent Act and reference was made to Section 17: but that section dealt merely with an enquiry by the Controller and his power to enforce the attendance of witnesses and the production of documents to which matters the provisions of the Code of Civil Procedure might be appropriate. This matter is one of substance and not one of form. For points of difficulty such as questions as to the onus of proof and as to the examination of the Defendant on oath may arise when the provisions of the Civil Procedure Code are to be applied to proceedings of a criminal nature and indeed the President of the Tribunal in his judgment in this case referred to the fact that the proceedings are governed by the Code of Civil procedure and that both parties are competent witnessesand that Gobardhan deliberately abstained from giving evidence. This is a matter which the 'President of the Tribunal' could not have taken into consideration if the proceedings had been in accordance with the Code of Criminal Procedure.
I am both to decide that a Rule passed by the Local Government is 'ultra vires' but in this case, after giving full consideration to the arguments advanced by those who showed cause against the Rule, I ,am driven to the conclusion, for the reasons above-mentioned, that Rule 4 is 'ultra vires' and consequently in my judgment the Rule must be made absoluteand the order complained of must be set aside. The fine and the costs if paid will be refunded.
I cannot part with this case without pointing outthat even if the provisions of Rule 4 had been made part of the Rent Act, considerable difficulties might arise in their application; first, because the provisions of the Civil Procedure Code in themselves are not ordinarily applicable to proceedings in respect of criminal offences and secondly, because the direction contained in the rule that the Controllerand President of the Tribunal shall follow as nearly as may be the Code of Civil Procedure is of such a vague and general nature, that difficult and nice points of law might be involved, a contingencywhich m proceedings of this nature it is desirable to avoid'.
60. Their Lordships did not make Section 20 of the Act ultra vires the legislature. What their Lordships held was that the statutory rules, made under the Calcutta Rent Act, 1920 were not enactments, promulgated as they were not in the manner that regulations were to be made under the provision of Section 71 of the Government of India Act, 1915. Not being an enactment, the said statutory rules could not repeal Section 5(2) of the Code of Criminal Procedure, which provided for investigation, inquiry and trial of all offences 'under any other law' (meaning other than the Indian Penal Code) according to the provisions of the Criminal procedure Code but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiry and trial of such offence. That was the main reason which weighed with their Lordships in making Rule 4, framed under Calcutta Rent Act, ultra vires, triable as it did, a new criminal offence under the procedure laid down under the Code of Civil Procedure. Their Lordships also expressed their views on the undesirability and difficulties of trying a criminal offence under the Civil Procedure Code. But that was only a subordinate line of reasoning.
61. As a matter of historical interest, I notice that the then Government of Bengal took note of the judgment of this Court and amended Rule 4, framed under the rule-making power of the Calcutta Rent Act, by a notification No. 4170 L. S.G., dated the 8th September, 1921 to the following effect:-'In rule 4, add the following proviso:-Provided that in making a summary enquiry under Section 19 or Section 20 of the Act the President of the Tribunal shall follow as nearly as may be the procedure for conducting an enquiry prescribed by the Code of Criminal Procedure'.
62. Whatever may have been their Lordships' difficulty in treating the rules under the Calcutta Rent Act, 1920 as enactments, these difficulties do not confront me.
63. Delegation of legislative power to Governmental authorities or to be more exact, delegation of power to make rules either to the State Government or to the Union Government, so as to supplement provisions in statutes, has become a common feature in our modern statutes. Rules framed under the rule-making power, conferred by the statute, cannot however offend against the provision of the statute itself and must confine themselves within, the four corners of the Act conferring on the Government, the power to make Rules. In other words they are to be made in furtherance of the Act itself and when so made are to be treated as part and parcel of the statute. In the case reported in T. B. Ibrahim v. Regional Transport Authority, Tanjore, : 4SCR290 , Ghulam Hassan J., expressed the view in the following language:-
'Reliance was placed on a passage at page 297 of Craies 'on Statute Law' as laying down that a bye-law must not be repugnant to the statute or the general law. But bye-laws and rules made under a rule-making power conferred by a statute do not stand on the same footing as such rules are part and parcel of the statute itself'.
64. Rule 9 made under the rule-making power invested in the State Government under Section 47 of the Act, was therefore, a part of the statute itself and thus notionally an enactment, if it was otherwise valid. To that aspect of the question I shall have to revert hereinafter.
65. The other decision, relied on by Mr. Deb, is the case reported in : AIR1953Cal85 . In that case the tenant complained against the landlord before a Presidency Magistrate that the latter had not allowed him access to the privy or to take water from the tap and had thus committed an offence under Section 41 of the West Bengal Premises Kent Control (Temporary Provisions) Act, 1950, prior to the prosecution of the landlord before a Criminal Court, he had been proceeded against before the Rent Controller for the same offence and was fined. Before the Learned Magistrate it was contended, by the accused landlord, that the offence with whichhe was charged in the Criminal Court was the same with which he had been charged before the Rent Controller and that he could not be twice punished for the same offence. The contention made by the accused did not find favour with the Magistrate and he convicted and sentenced the accused to a term of imprisonment and fine. The accused landlord moved this Court against his conviction and sentence and obtained a Rule. Harries C, J. and Sarkar J. made the Rule absolute and set aside the conviction and sentence with the following observations (at page 87):-
'Section 31 of the Rent Control Act, 1950 entitles a Rent Controller to impose a fine, and a fine is a punishment for a criminal offence. Whether it be an offence within the Code of Criminal Procedure or not is immaterial. The word fine is defined by Littleton in these words:-
'Fine signified a pecuniarie punishment of an offence or a contempt committed against the King, and regularly to it imprisonment appertaineth. And it is called 'finis', because it is an end for that offence'. It appears to me beyond all question that when a statute gives the Rent Controller power to impose a penalty, that is fine a person, it gives him a right to deal with the prosecution of an offence and to punish the commission of such offence. What else can these proceedings before the Rent Controller be? They are not civil proceedings. They are proceedings of a criminal nature resulting in a well-known form of punishment for a crime, namely, the imposition of a fine.
It is hue that Section 41 allows proceedings to betaken for the very same sort of offence in the criminal court. But I find it impossible to hold that with regard to the very same facts a man can be dealt with and punished by the Rent Controller and the criminal court. If so, A could be punished by both the courts for cutting off the supply of water on March 1 of any year. If on March 2 and succeeding days the water, still remains cut off, he could for each day be prosecuted and punished in both courts and that could go on until he saw fit to restore the connection. Surely that cannot be right. If the prosecution in the criminal court is upon the same facts as the proceedings in the Rent Controller's Court, then previous conviction and fine by the Rent Controller would bar any punishment being given by the criminal court by reason of the plain words of Article 20(2) of the Constitution of India.
On the other hand, if the proceedings in the. Court of the Controller related, for example to cutting off the supply of water in the month of March and the proceedings in the criminal court for keeping the supply Cut off in the month of April, then quite obviously the criminal court could punish because one punishment only would he imposed for the particular offence charged. But if, as the learned Magistrate says, the charge made before him was based on precisely the same facts upon which the Controller found the petitioner guilty and fined him, then it appears to me that the Criminal court could not possibly inflict any further punishment.
Reliance was placed upon a Bench decision of this Court in the case of -- 'Jhabermal Dudhwallav. Govindram' : AIR1952Cal121 , in which it was held that the fact that certain proceedings under Section 34 were taken before the Rent Controller and have been concluded cannot stand in the way of the proceedings started under Section 41 in the criminal court. Section 403 of the Code of Criminal procedure has no application to such a case.
It does not appear that in this case the proceedings in the Criminal court related to the very same fact, and period of time as the proceedings before the Rent Controller. In fact it seems clear from the facts that the proceedings in the criminal court related to some period after the proceedings before the Rent Controller had concluded. In such a case quite clearly the criminal court could proceed. Whether Section 403 of the Code of Criminal Procedure applies to a case of this kind is, I think, not material because the Constitution makes two punishments impossible. It is to be observed that the words 'prosecution' and 'offence' as used in the Constitution are not defined and they must be given their ordinary meaning. Going to the Rent Controller and asking him to fine a man for an act is really a prosecution of that man and the act is an offence against the statute and is a criminal offence because it is punishable by a fine which is a punishment of a criminal nature'.
66. There are indications in the Act why the offences contemplated in Section 33 of the West Bengal Premises Rent Control (Temporary Provisions' Act, 1950 may not be Criminal offences for the purposes of Section 33. Such offences are not triable by a Criminal Court but by a Controller. There is a period of limitation prescribed, under Section 35 of the Act, for the making of a complaint to the Controller, under Sections 33 and 34 of the Act. The penalty imposed by the Controller, though called fine, is not recoverable by the procedure prescribed under Section 388 o the Code of Criminal Procedure but as a public demand under the Public Demands Recovery Act, The receiving of any premium, salami, fine or like imposition is no doubt a criminal offence for the purpose of Section 41 of the Act. But that makes no difference because a statutory offence in addition to being such an offence may also be a crime punishable, as such, for a different purpose and in a different jurisdiction. If it is necessary to illustrate this legal position, reference need be made to Section 180 of the Sea Customs Act, 1878, under which the award of any confiscation penalty or increased duty under the Sea Customs Act does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. If the decision reported in : AIR1953Cal85 treated all the statutory offences, referred to in Section 33, as equivalent to criminal offences, the proposition may have been too broadly stated.
67. Had it been necessary for me to find whether an offence under Section 33 of the Act was a crime, I might have found in the negative. But it is not necessary For me to do so because whether a crime or a mere statutory offence I do not approve of the trial of such an offence under the procedure laid down in the Civil Procedure Code for regular trial of suits.
68. In the first place, there is Section 5 of the Criminal Procedure Code, which provides:
5. (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated into, tried and otherwise dealt with according to the same provisions, but subject to any other enactment for the time being in force regulating the manner or place of investigation, inquiring into or otherwise dealing with such offence. If Rule 9 had not provided for trial of some of the offences, under the Act, under the procedure laid down in the Civil Procedure Code, Section 5(2) of the Code of Criminal Procedure would have, of its own force, applied to the inquiry, investigation or trial of such offences. The Rent Control Act does not expressly make the Civil Procedure Code applicable to the inquiry, investigation or trial of such offences. Rule 9 does so, in exercise of the power delegated to the State Government under Section 47(2) (g) of the Act.
69. The question, therefore, arises what was the extent of the power, under Section 47(2) (g) of the Act, delegated to the rule-making authority and whether the delegation was a valid delegation. On the point of delegated legislation there are several judgments oi the Supreme Court, to some of which I need refer, so as to find out the limitation as to delegation. One such case is reported in Dwarka Prosad Laxmi Narain v. State of U. P., : 1SCR803 in which the provisions of Clause 4(3) of the Uttar Pradesh Coal Control Order 1953, made in exercise of power conferred on the Government under the Essential Supplies Act, 1946 wore treated as bad, because it conferred unrestricted power, on the Licensing Authority, thereby imposing an unreasonable restriction upon the freedom of trade and business guaranteed under the Constitution. Observed Mukherjea, J.:
'The more formidable objection has been taken on behalf of the petitioners against Clause 4 (3) of the Control Order which relates to the granting and refusing of licenses. The licensing authority has been given absolute power to grant or refuse to grant, renew, or refuse to renew, suspend, revoke, cancel or modify any licence under this Order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same, and the choice can be made in favour of any and every person. It seems to us that such provision cannot be held to be reasonable.
No rules have been framed and no directions given on these matters to regulate Or guide the discretion of the Licensing Officer. Practically the Order commits to the unrestrained will of a single individual the power to grant, withhold or 'cancel licences in any way he chooses and there is nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Mr. Umrigar contends that a sufficient safeguard has been provided against any abuse of power by reason of the fact that the licensing authority has got to record reasons for what he does.
This safeguard, in our opinion, is hardly effective; for there is no higher authority prescribed inthe Order who could examine the propriety of these reasons and revise or review the decision of the subordinate Officer. The reasons, therefore, which are required to be recorded are only for the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person.
It was pointed out and with perfect propriety by Mr. Justice Matthews in the well-known American case of 'Yick Wo v. Hopkins', (1886) 118 US 356 at p. 373 that the action or non-action of officers placed in such position may proceed from enmity or prejudice, from partisan zeal or animosity, from favouritism and other improper influences and motives which are easy of concealment and difficult to be detected and exposed, and consequently the injustice capable of being wrought under cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation. In our opinion, the provision of Clause 4(3) of the U. P. Coal Control Order must be held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19(1)(g) of the Constitution and not coming within the protection afforded by Clause (6) of the Article'.
70. The other case on the point is the one reported in Harishankar Bagla v. State of Madhya Pradesh, : 1954CriLJ1322 in which the discretion given to Textile Commissioner, under Cotton Textiles (Control of Movement) Order 1948, framed under the Essential Supplies Act, 1946 was held to be valid because the discretion was not unlimited. Observed Mahajan J. :-
'It may also be pointed out that reference to the decision of this Court in--Dwarka Prasad's case, : 1SCR803 is not every apposite and has no bearing on the present case, Section 4(3) of the U. P. Coal Control Order was declared void on the ground that it committed to the unrestrained will of a single individual to grant, withhold or cancel licences in any way he chose and there was nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Section 4(3) of the U. P. Coal Control Order was in these terms:-
'The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded. Provided that every power which is under this Order exercisable by the Licensing Authority shall also be exercisable by the State Coal Controller, or any person authorised by him in this behalf'. In the present Control Order there is no such provision as existed in the U. P. Coal Control Order. Provisions of that Control Order bear no analogy to the provisions of the present Control Order, The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Texthe Commissioner is to be exercised in such a way as to effectuate this policy. The conferment of sucha discretion cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief. Presumably, as appears from the different forms published in the Manual, there are directions and rules laid down by the Central Government for the grant or refusal of permits'.
In the same judgment Mahajan J. indicated the limits of delegation of legislative power in the following language:-
'The next contention of Mr. Umrigar that Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 amounts to delegation of legislative power outside the permissible limits is again without any merit. It was settled by the majority judgment in the Article 143 'Constitution of India and Delhi Laws Act, 1912 etc.,' In re, AIR 1951 SC 332 that essential powers of legislation cannot be delegated. In other words the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct'.
71. Another case in which the limits of delegation of legislative power was considered is the one reported in Raj Narain Singh v. Chairman, Patna Administrative Committee, : 1SCR290 in which Bose J. made the following observations with reference to a notification issued under the Patna Administration Act, 1915:-
'We turn next to the Notification of 23-4-1951. This does affect him because it subjects him to taxation. It was made under Section 3(1) (f), therefore, it will be necessary to examine (1) whether the Notification travels beyond the impugned portion of the Act and (2) if not, whether Section 3(1) (f) is itself 'ultra vires'. But we cannot do this until we examine the decision of this Court in AIR 1951 SC 332.
* * * * The views of the various members of the Bench were not as clear cut here as in the first five cases, so it will be necessary to analyse what each judge said.
The opinion of Kania, C. J., will be found at pages 345-346. Put briefly his view was that only Parliament can effect modifications in any 'essential legislative function' viz., 'the determination of the legislative policy and its formulation as a rule of conduct.' For this reason he was prepared to uphold what he called 'conditional' or 'subsidiary' or 'ancillary' legislation, but not the application by an executive authority of Provincial Acts to which the Central Legislature had not applied its mind at all (pp. 347, 348); and for the same reason he excluded) the application of all future legislation.
The present Chief Justice (Mahajan, J., as he then was) took an even stricter view. He was prepared to authorise delegation of ancillary or ministerial powers (pages 386 and 389) but except for that he said :
'Parliament has no power to delegate its essential legislative functions to others, whether State legislatures or executive authorities, except of course, functions which really in their true nature are ministerial.' As against this, three of the Judges were more liberal., Das J. was of the opinion that so long as Parliament did not abdicate or efface itself and retained control in the sense of retaining the right to recall or destroy or set right or modify anything its delegate did, it could confer on the delegate 'all' the rights of legislation which it itself possessed (page 425). Patanjali Sastri J. (as he then was) took the same extreme view (pages 362, 363 and 366). Fazl Ali J. did not go as far though he upheld all the Acts which were impugned in that case. At page 355 he said that:
'the legislature must normally discharge its primary legislative function itself and not through others.' but that it may
'utilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation.' He dealt with the power to modify at pp. 359, 360 and said :
The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law ........ The modificationsare to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purposes to be served by it The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes.' The other two Judges took an intermediate view. Mukherjea, J. said that essential legislated functions cannot be delegated' and at pp. 400 and 40 he indicated what he meant:
The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct.' and at page 405 :
'With the merits of the legislative policy, the Court of law has no concern. It is enough if it is defined with sufficient precision and definiteness so as to furnish sufficient guidance to the executive officer who has got to work it out. If there is no vagueness or indefiniteness in the formulation of the policy, I do not think that a Court of law has got any say in the matter.' Dealing with the word 'modification' he said at p. 407:
The word 'modification' .......... does not,in my opinion, mean or involve any change of policy but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive government is made the Judge ..........' At p. 408, he explained this further and limited the modifications to 'local adjustments or changes of a minor character.'
Bose J. contented himself at pp. 439, 440 by saying that the delegation cannot extend to the 'altering in essential particulars of laws which are already in force in the area in question'. Bat ho added at p. 440 :
'My answers are, however, subject to this qualification. The power to 'restrict and modify' does not import the power to make essential changes. II is confined to alterations of a minor character' such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely the power to legislate, all authorities are agreed, cannot be delegated by a legislature which is not unfettered.' In our opinion the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above : it cannot include a change of policy.
Now coming back to the Notification of 23-4-1951. Its 'vires' was challenged on many grounds but it is enough for the purposes of this case to hold that the action of the Governor in subjecting the residents of the Patna village area to municipal taxation without observing the formalities imposed by Sections 4, 5 and 6 of the Bihar and Orissa Municipal Act of 1922 cuts across one of its essential features touching a matter of policy and so is bad.
The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features is that no municipality competent to tax shall be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that effect. Therefore, the Local Government is under a statutory duly imposed by the Act in mandatory terms to listen to the objections and take them into consideration before reaching a decision.
In our opinion, this is a matter of policy, a policy imposed by the legislature and embodied in Sections 4, 5 and 6 of the Act. We are not able to brush this aside as negligible and it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard cf the legislature's solemnly expressed mandate. To do so would be to change the policy of the law and that, the majority in 'The Delhi Laws Act case', AIR 1951 SC 332 say cannot be done by a delegated authority. But the Notification cannot be 'ultra vires' if it does not travel beyond the powers conferred by a law which is good. It will, therefore, be necessary to examine the Vires' of Section 3(1)(f) in the light of--The Delhi Laws Act decision, AIR 1951 SC 332 '.
Now what exactly does Section 3 (1) (f) authorise? After its amendment it does two things :First, itempowers the delegated authority to pick any section it chooses out of the Bihar and Orissa Municipal Act of 1922 and extend it to 'Patna'; and second, it empowers the Local Government (and later the Governor) to apply it with such 'restrictions and modifications' as it thinks fit.
In 'The Delhi Laws Act case, AIR 1951 SC 332 ', the following provision was held to be good by a majority of four to three :
'The Provincial Government may ...... extendwith such restrictions and modifications as it thinks fit .... any enactment which is in force in anypart of British India at the date of such notification.' Mukherjea and Bose, JJ., who swung the balance, held that not only could an entire enactment with modification be extended but also a part of one; and indeed that was the actual decision in 'Queen v. Burah, 5 Ind App 1.78 (P. C.) on which the majority founded; (see Mukherjea J. at p. 405 and 'Bose J. at pages 435 and 439, 440). But Mukherjea and Bose, JJ., both placed a very restricted meaning on the words 'restriction' and 'modification' and as they swung the balance their opinions must be accepted as the decision of the Court because their opinions embody tbe greatest common measure of agreement among the seven Judges.
Now tbe only difference between that case and this is that whereas in the former case the whole of an enactment, or a part of it, could be extended, here, any section can be picked out. But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a modification, and as the previous decision holds that a part of an Act can be extended, it follows that a section or sections can be picked out and applied, as in 'Burah's case, 5 Ind App 178 (PC), where just that was done; also, for the same reason that the whole or a part of an Act can be modified, it follows that a section can also bo modified.
But even as the modification of the whole cannot be permitted to effect any essential change in the Act or an alteration in its policy, so also a modification of a part cannot be permitted to do that either. If that were not so, the law, as laid down in the previous decision, could be evaded by picking out parts of an Act only, with or without modification, in such a way as to effect an essential change in the Act as a whole. It follows that when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole. Subject to that limitation we hold that Section 3(1)(f) is 'intra' vires', that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked and applied to 'Patna' provided that does not effect any essential change in the Act or alter its policy.'
Bearing in mind the above observations, I have to consider whether the delegation of legislative power, under the Act, amounted to surrender of essential legislative function. The Act created new statutory offences and also prescribed penalties for such offences. If the Act further wanted to deprive persons, accused of such offences, of the benefits oftrial under the ordinary procedure for trial of all offences, namely, the Criminal Procedure Code, the law makers would have expressly said that and not left that to the discretion of the rule-making authorities.
72. Section 5 (2) of the Code of Criminal Procedure makes it clear that all offences under any law, other than the Indian Penal Code, shall also be tried under the Criminal Procedure Code, unless such other enactment regulated the manner of trial of such offences. The question is whether the Rent Control Act left the manner in which enquiries or the trial of offences under the Act were to be held to the sole discretion of the rule making authorities.
73. A delegation of excessive or unreasonable legislative power is not lightly to bo inferred. I, therefore, hold that there is nothing contained in Section 47 (2) (g) or anywhere else in the Act, which would entitle the rule-making authority to prescribe a procedure for trial of an, offence under the Act, as in the present case, different from the procedure for trial of offence, as provided for in Section 5 (2) of the Code of Criminal Procedure.
74. The language of Section 47 (2) (g) of the Act is somewhat unhappy. It contains no express words, limiting the power of the rule-making authority in the matter of prescribing rules of procedure. But I am of the opinion, for reasons already stated, that the limitation is implied; otherwise Section 47 (2) (g) itself would have become bad because of delegation of excessive and unrestrained legislative power to a rule-making authority. It is a cardinal rule of construction of statutes that attempt should be made to make sense of its language if possible. Observes Craies in his book on Statute Law (5th Edition p.90) :
'The first business of the Courts is to make sense of the ambiguous language, and not to treat it as unmeaning, it being a cardinal rule of construction that a statute is not to be treated as void, however, oracular. This was thus laid down by Brown, L. J. in Curtis v. Stovin, (1889) 22 QBD 513 at p. 517: 'The rules for the construction of statutes are very like those which apply to the construction of other documents, especially as regards one crucial rule viz., that if possible, the words of an Act of Parliament must be construed so as to give a sensible meaning to them. The words ought to be construed at res magis valeat qnam pereat'. And Fry, L, J. added (lb., p. 519): 'The only alternative construction offered to us would lead to this result that the plain intention of the legislature has entirely failed by reason of a slight inexactitude in the language of the Section. If we were to adopt this construction, we should be construing the Act in order to defeat its object rather than with a view to carry its object into effect .''
75. I, therefore, apply the above rule of construction and hold that Section 47 (2) (g) of the Act did not delegate to the State Government the power to prescribe for trial of offences, under the Act, a procedure different from that in the Code of Criminal Procedure.
76. The result is that I answer the question of law in the affirmative. In my opinion Rule 9 of the West Bengal Premises Rent Control-Rules, 1950, in so far as it made the Civil Procedure Code applicable to inquiries into offences created! by the Act is ultra vires Section 47 (2) (g) of the Act.
77. Let the matter be now placed before the learned Chief Justice, with the conclusion and answer, for necessary direction.
78. There will be no order as to costs of this hearing.
79. I agree with Banerjee J.
P.N. Mookerjee, J.
80. I agree with the answer, proposed by my Lord. I also agree generally with his reasons for the same, reserving only my opinion upon the question whether statutory offences, which are punishable by fines, would or would not be crimes or of a criminal nature, which, as is clear from the judgment of my Lord also, and in the view taken by him too, need not be answered for purposes of the present reference. The basic question, namely, the true scope and extent of the delegation or the rule-making power, as envisaged in Section 47 (2) (g) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, has been fully and exhaustively dealt with by my Lord, in the light of the relevant fundamental principles and he has drawn particular attention to the ruling authorities on the point and discussed their true effect and significance with all necessary implications. Indeed, as stated by my Lord, the principle is well settled that essential legislative functions cannot be delegated. It is also perfectly clear that, in the face of Section 5(2) of the Code of Criminal Procedure, the prescribing of a different procedure for a statutory offence would, in essence, be an essential legislative function. Accordingly, i power in that behalf cannot be delegated. That, indeed, is well settled and beyond controversy. Plainly, also, it is not a case of conditional legislation nor is it one, where the Legislature has declared the policy or the underlying principle in the matter of this fundamental change of procedure. For that, clearer words the plainer indications were necessary.
81. In the above context, the aforesaid Section 47 (2) (g) should be reasonably construed as not I empowering or authorising the delegate (State Government) to apply the Civil Procedure Code to the statutory offences under the Act inasmuch as, otherwise, in the light of what has been stated above, it would amount to clear transgression of the permissible limits of delegation and would make the section itself bad, unconstitutional, invalid and ultra vires--a consequence which, if possible, should be avoided, as it is settled law that a construction; which makes a particular statutory provision ultra vires, should be rejected in favour of one, which makes it intra vires.